Burkett v. State of Wisconsin et al

Filing 5

ORDER signed by Judge J.P. Stadtmueller on 6/28/2018. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee is DENIED. CASE DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim upon which relief may be granted and as frivolous. Plaintiff is FINED in the amount of $500.00. Until Plaintiff pays that fine in full, the Clerk of the Court of this District is DIRECTED to return unfiled any papers submitted by Plaintiff except for those in defense of a federal criminal case or applying for a writ of habeas corpus. See Order. (cc: all counsel, via mail to Andre Burkett)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ANDRE BURKETT,
Plaintiff,
v.

Case No. 18-CV-907-JPS

STATE OF WISCONSIN and
MILWAUKEE POLICE
DEPARTMENT,

ORDER

Defendants.
Plaintiff filed a pro se complaint for an alleged violation of his civil
rights. (Docket #1). This matter comes before the court on Plaintiff’s motion
for leave to proceed in forma pauperis. (Docket #2). In order to allow a
plaintiff to proceed without prepaying the filing fee, the Court must first
decide whether the plaintiff has the ability to pay the filing fee and, if not,
whether the lawsuit is frivolous. 28 U.S.C. §§ 1915(a), (e)(2)(B)(I). On the
first question, Plaintiff avers that he is unemployed and collects $800 in
government assistance payments. (Docket #2 at 2). Plaintiff’s expenses total
$700. Id. at 2–3. He has no other property of value. Id. at 3. Plaintiff’s sworn
statements reveal that he would be unable “to provide himself . . . with the
necessities of life” if required to prepay the $400 filing fee in this matter.
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948); Brewster v.
N. Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972).
However, notwithstanding the payment of any filing fee, the Court
must dismiss a complaint if it raises claims that are “frivolous or malicious,”
which fail to state a claim upon which relief may be granted, or that seek

monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2)(B).
A claim is legally frivolous when it lacks an arguable basis either in
law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams,
490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900
(7th Cir. 1997). The court may, therefore, dismiss a claim as frivolous where
it is based on an indisputably meritless legal theory or where the factual
contentions are clearly baseless. Neitzke, 490 U.S. at 327. “Malicious,”
although sometimes treated as a synonym for “frivolous,” “is more usefully
construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 1109–
10 (7th Cir. 2003) (citations omitted).
To state a cognizable claim under the federal notice pleading system,
the plaintiff is required to provide a “short and plain statement of the claim
showing that [he] is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts and his statement need only
“give the defendant fair notice of what the…claim is and the grounds upon
which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that offers
“labels and conclusions” or “formulaic recitation of the elements of a cause
of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555). To state a claim, a complaint must contain
sufficient factual matter, accepted as true, “that is plausible on its face.” Id.
(quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The complaint allegations “must be enough to

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raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555
(citation omitted).
In considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first, “identifying pleadings
that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679. Legal conclusions must be
supported by factual allegations. Id. If there are well-pleaded factual
allegations, the court must, second, “assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Id.
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must
allege that: 1) he/she was deprived of a right secured by the Constitution or
laws of the United States; and 2) the deprivation was visited upon him/her
by a person or persons acting under color of state law. Buchanan-Moore v.
County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill.
of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo,
446 U.S. 635, 640 (1980). The court is obliged to give a plaintiff’s pro se
allegations, “however inartfully pleaded,” a liberal construction. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)).
Plaintiff alleges that the Milwaukee Police Department falsely
arrested him on February 4, 1998, without evidence or even a belief that he
had violated any laws. (Docket #1 at 2). He apparently gave a statement
during the subsequent interrogation. Id. The statement was, in turn, used in
several prosecutions against him in Wisconsin state courts in 1998 and 1999.
Id. at 2–3. Plaintiff was convicted in those cases and was imprisoned for
many years. Id. at 3. He was then released on supervision, the term of which
ended in October 2017. Id. Plaintiff requests that the Court order
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Defendants to pay him for each day he spent in prison and on supervision.
Id. at 4. He further asks that the Court “clear his name” as to the convictions.
Id.
This is the latest in a long line of actions brought by Plaintiff seeking
to collaterally attack his now twenty-year-old convictions. His most recent
prior filing was in 2015. Former District Judge Charles N. Clevert described
Plaintiff’s litigation history and explained why dismissal of that action was
appropriate:
Andre Burkett filed this case using a form civil
complaint on which he contends that the State violated his
due process rights. Although the allegations are unclear,
Burkett appears to assert that a district attorney committed
perjury and used a falsified police report related to state-court
cases 98CF2857, 98CF2858, 99CF2211, and 99CF1892. As
relief, Burkett asks this court to dismiss the charges in those
cases because the district attorney made a perjurious
statement to the state court.
...
This is at least the fourth case Burkett has brought
concerning these convictions. On July 14, 2006, Judge
Adelman denied and dismissed Burkett’s 28 U.S.C. § 2254
habeas case regarding the convictions in cases 98CF2857,
99CF1892, and 99CF2211, based on untimeliness. Burkett v.
Champagne, No. 05-C-1139, slip op. (E.D. Wis. July 14, 2006).
On February 27, 2010, this court dismissed a civil case Burkett
filed against the Milwaukee County Circuit Court, the
Wisconsin Court of Appeals, and the Wisconsin Supreme
Court, concerning cases 99CF1892 and 99CF2211. Burkett had
asserted that in those cases he was innocent of the crimes, he
was maliciously prosecuted, and a fundamental miscarriage
of justice had occurred; this court dismissed the claims against
the courts or its judges based on judicial immunity. In
addition, this court indicated that to the extent the complaint
was intended to be a petition for writ of habeas corpus,
Burkett would have to file a proper habeas pleading and
could be barred from filing a second or successive petition.
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Burkett v. Wis. Sup. Ct., No. 10-C-140, slip op. (E.D. Wis. Feb.
27, 2010). Thereafter, on September 29, 2014, Magistrate Judge
William E. Duffin dismissed another habeas petition
regarding state cases 98CF2587, 99CF2211, and 99CF1892, as
a second or successive petition barred under 28 U.S.C. §
2244(b). Burkett v. State of Wisconsin, No. 14-C-1160, slip op.
(E.D. Wis. Sept. 29, 2014).
Here, Burkett again seeks dismissal of these state-court
charges against him under the guise of a civil rights case. But
his request is one for habeas relief, not § 1983 relief. Burkett’s
prior habeas attacks on these fifteen-year-old convictions
have failed. The issues he raises have already been decided
against him. And he cannot execute an end-run around the
merits decision in Judge Adelman’s case or the second-andsuccessive bar by rewriting his attack as a civil rights claim.
See Dalton v. United States, No. C 09-05452 SI, 2010 WL
1644701, *2 (N.D. Cal. Apr. 21, 2010) (“Perhaps in an attempt
to circumvent this Court’s many prior dismissals of his
successive habeas petitions, Mr. Dalton has styled the present
action not as a habeas petition but as a civil rights action
arising under 28 U.S.C. § 1983 . . . . Mr. Dalton is attempting
once again to attack the validity of his conviction and sentence
by challenging the DEA agent’s conduct leading up to his
arrest. Such a challenge must be brought in a habeas petition
under 28 U.S.C. § 2255. The Court has advised Mr. Dalton on
multiple occasions that he may not file any additional habeas
petitions with this Court unless the Ninth Circuit expressly
gives him permission to do so.”).
To the extent that Burkett could be seeking other
remedies in this civil rights action, such as damages, if he
remains subject to a form of custody (his address suggests
that he is out of prison, but he may be under supervision on
release) the claim raised in this action is barred by Heck v.
Humphrey, under which there is “no cause of action under §
1983 unless and until the conviction or sentence is reversed,
expunged, invalidated, or impugned by the grant of a writ of
habeas corpus.” 512 U.S. 477, 489 (1994). In other words,
unless and until the cited criminal convictions are overturned,
Burkett has no § 1983 claim. If Burkett is no longer under any
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form of supervision, he cannot proceed because the matter
has been decided against him or because he failed to pursue
collateral relief in a timely manner, see Burd v. Sessler, 702 F.3d
429, 435-36 (7th Cir. 2012).
Andre Burkett v. State of Wisconsin District Attorney’s Office, Case No. 15-CV971-CNC, slip op. (E.D. Wis. Oct. 8, 2015).
Plaintiff’s instant claim must be dismissed for the same reasons as
explained by Judge Clevert. Though it is not entirely clear whether Plaintiff
seeks to vacate his convictions, to the extent this is the relief he wants, he
has already exhausted his avenues for habeas relief in this Court. As to his
claim for damages, “a § 1983 suit for damages that would necessarily imply
the invalidity of the fact of an inmate’s conviction . . . is not cognizable
under § 1983 unless and until the inmate obtains favorable termination of a
state, or federal habeas, challenge to his conviction or sentence.” Nelson v.
Campbell, 541 U.S. 637, 646 (2004) (quotation omitted). Plaintiff’s assertion
that he was falsely arrested at least implies, if not directly challenges, the
validity of his convictions. While his convictions stand, he cannot sue for
damages relating to this alleged constitutional violation. Burd v. Sessler, 702
F.3d 429, 435–36 (7th Cir. 2012). This action must, therefore, be dismissed,
and Plaintiff’s motion for leave to proceed in forma pauperis must be denied.
It will be dismissed because Plaintiff fails to state a viable claim for relief
and because it is frivolous. Judge Clevert’s October 2015 order clearly
described why this action should not have been filed, but Plaintiff did so
anyway.1

This disposition does not reach the many other infirmities with Plaintiff’s
action, including his attempt to sue a non-suable entity (the Milwaukee Police
Department) and a defendant which is immune from suit (the State of Wisconsin),
as well as a long-expired statute of limitations.
1

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This is not the end of the matter, however. In his October 2015 order,
Judge Clevert warned Plaintiff that continued frivolous litigation
concerning his state court convictions may result in sanctions. Plaintiff
failed to heed Judge Clevert’s warning. This Court will now make good on
its colleague’s threat. Plaintiff is fined in the amount of $500. Until he pays
that sanction, the Clerk of the Court in this District shall return, unfiled, any
papers submitted by Plaintiff except for those in defense of a federal
criminal case or applying for a writ of habeas corpus. Bradley v. Wis. Dep’t
of Children & Families, 715 F. App’x 549, 550 (7th Cir. 2018), citing Support
Sys. Int’l v. Mack, 45 F.3d 185, 186 (7th Cir. 1995). Plaintiff may move the
Court, no earlier than two years from the date of this Order, to rescind or
modify this filing ban.
Accordingly,
IT IS ORDERED that Plaintiff’s motion to proceed in forma pauperis
(Docket #2) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state
a claim upon which relief may be granted and as frivolous; and
IT IS FURTHER ORDERED that Plaintiff is fined in the amount of
$500. Until he pays that fine in full, the Clerk of the Court of this District is
directed to return unfiled any papers submitted by Plaintiff except for those
in defense of a federal criminal case or applying for a writ of habeas corpus.
The Clerk of Court is directed to enter judgment accordingly.

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Dated at Milwaukee, Wisconsin, this 28th day of June, 2018.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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